The offenders whom pro-death penalty
advocates hold up as model candidates for lethal injection—serial killers,
sadists, and others who stand out for their brutality or deviance—don’t tend to
be rational decision-makers, weighing cost and benefits, crime and punishment.

This was borne out in a 2015 study published in The
Lancet journal of psychiatry, which found that psychopaths and those
with anti-social personality disorder do not respond to punishment the way the
rest of us do; in fact they do the opposite, thinking that their behavior will
always be rewarded.

The argument from the theory of retributive justice is more
solid But the strength of this theory does not lend itself to the death
penalty.

One of its core principles is that of proportionality: the punishment
must correspond to the offense, with greater crimes eliciting more severe
punishments.

This approach not only seems eminently reasonable but also
compassionate: it’s what prevents us from amputating the hands of thieves or
issuing fines for assaults, as C.S. Lewis argued.

Retributive justice calls for the death
penalty in cases where the principle of proportionality would not be satisfied
by a lesser punishment, according to pro-death penalty Catholic philosopher
Edward Feser.

(I’m relying on a summary of his position given at Brown University on
February 6.)

But there are limits to how far we can go in applying this
principle. Mass murderers, for example, cannot be executed again and again, as
Feser notes.

Moreover, it should be self-evident that the
proportionality, by definition, does not demand equivalence or exactitude.

We
don’t give victims of theft license to raid the homes and businesses of the
original perpetrators, nor do we allow the state to do this on their behalf.

Likewise with rapists: there is simply no remotely equivalent punishment that
corresponds to the physical and psychological harm they inflict.

Again: no one
would argue that sadists who torture their victims but leave them alive should
be waterboarded or subjected to sensory deprivation.

Proportionality tells us “how much” of a
punishment should be doled out.

But as to the nature of what that punishment
is, modern society has, when it comes to serious crimes, settled on one thing:
prison time.

To simply say that murder is different because a life is lost is
inadequate.

There is no shortage of crimes that are unique in their own way and
seem to call out for a special punishment—rape, assaults that inflict
life-altering injuries, and child abuse come to mind.

However,
retributionists don’t seem to worry that the principle of proportionality is
underserved by prison time when it comes these offenses.

Why is justice served
by prison sentences in these instances but not for murder?

Meanwhile, the conservative arguments against
the death penalty are much stronger than many people realize.

The first is
simply fiscal: even if you don’t object on moral grounds, the high cost alone
makes it worth opposing.

According to Heather Beaudoin, the senior manager
of Conservatives Concerned about the Death Penalty, capital punishment cases
can be two to three times more expensive than comparable cases in which the
death penalty is not sought.

In Texas, Jasper County raised local taxes
by 7 percent just to cover the cost of a
single death penalty case.

In Nebraska, Richardson County had to mortgage its
ambulances to deal with the costs of two such cases.

Overall, the state has
spent $100 million prosecuting capital cases since 1976, according to a state senator.

In a 2015 op-ed, Ron Paul declared, “It is hard
to find a more wasteful and inefficient government program than the death
penalty.”

But beyond purely pragmatic considerations,
conservatives should be against the death penalty on the principle of small
government.

As Beaudoin told me in a previous interview, “There is no greater
power that we can give to the state than the ability to decide who lives and
who dies.”

Of course, we have to live with a fallible
state that makes mistakes.

But there’s a key difference to other erroneous
punishments it might impose: they are reversible, or at least can be mitigated.

A person wrongly sentenced to prison might not get back the time already
served, but he still gets something.

Moreover, he has a chance to sue over his
wrongful conviction.

Thomas Aquinas is often cited as a theologian
who supported the death penalty, but Catholic scholar E. Christian Brugger has argued
persuasively that Aquinas’ own premises are more supportive of the anti-death
penalty position.

This is readily apparent in a section of the Summa Theologica where
he’s discussing human and divine judgments.

“One who exercises public authority
may lawfully put to death an evil-doer, since he can pass judgment on him,”
Aquinas notes.

However, in the next breath, he suggests that it’s God’s
prerogative to determine when a person’s life should end:

“But the passage from
this life to another and happier one is subject not to man’s free-will but to
the power of God…because the ultimate and most fearsome evil of this life is
death.”

Of course, Aquinas quickly reiterates that
public authorities are exempted from this rule, but he does not satisfactorily
explain why. Yes, of course, public authorities are charged with promoting the
common good, but this raises the question: why does this give them the right to
inflict what Aquinas admits is the “most fearsome evil of this life?”

Even the analogy he employs doesn’t compel
acceptance of the death penalty.

Aquinas compares executions to amputations:
just as a physician must cut off a diseased limb, so also must public officials
“amputate” “bad members” of the body politic.

But the principle suggested by
this analogy is fulfilled by life in prison, which also achieves the effect of
removing someone from society.

Pro-death penalty conservatives may argue that
sometimes underserving murderers have a chance of parole, but that is a mistake
that is easily fixable.

A more convincing case could be made against
such an exception based on what Aquinas has said about God: surely the death of
a person is a power that should be reserved to Him alone.

Finally, a pro-life concern for the inviolable
dignity of the person should motivate conservatives to reject the death
penalty.

Human
reason regards the “preservation of human life as good and worthy of pursuit”
while “that which is contrary to human life” is “bad and worthy of avoidance.”

One way of determining whether an action is good is whether a good is intended.

The conclusion is that “the intentional harming or destroying of human life” is
not good and should be impermissible. Incarceration does not violate this norm.

As
Brugger notes, “Punishment, therefore, can deliberately inflict harm without
deliberately harming basic goods. One can intend the good end of restoring the
order of justice and adopt means such as censure, fines, imprisonment, or
exile, and yet never will as an end or means the destruction of or harming of a
person’s life, pursuit of knowledge, relationships of friendship, and so
forth.”

Brugger’s arguments rest on Aquinas. But his
other major source is Pope St. John Paul II and the message of life that was
one of the hallmarks of his papacy. (See especially his encyclical Evangelium Vitae.)

Brugger predicted that
John Paul II had laid the conceptual foundation for what Pope Francis is doing
now.

Thus, the current pope’s revision of the
catechism is, at least in this instance, less a change in doctrine than a
continuation of developments begun under a pope who was an ally of conservatives
on some of the most important issues of the last century.

So if you’re
skeptical of Francis, then trust John Paul II on this one. John Paul II was
right on communion, right on freedom, and right on abortion.

And he was more
right than he perhaps was himself willing to admit on the death penalty.